Currier v. Thompson, No. CIV.04-94-B-W.

• Decision Date: 11 May 2005
• Docket Number: No. CIV.04-94-B-W.
• Parties: Monica CURRIER, Plaintiff, v. Tommy G. THOMPSON, Secretary of the United States Department of Health and Human Services Defendant.
• Court: U.S. District Court — District of Maine

Page 65

369 F.Supp.2d 65

Monica CURRIER, Plaintiff, v. Tommy G. THOMPSON, Secretary of the United States Department of Health and Human Services Defendant.

No. CIV.04-94-B-W.

United States District Court, D. Maine.

May 11, 2005.

Ajaz S. Fiazuddin, Disability Rights Center, Augusta, ME, for Plaintiff.

Evan J. Roth, Office of the U.S. Attorney District of Maine, Portland, ME, for Defendant.

MEMORANDUM OPINION AND ORDER REVERSING ADMINISTRATIVE DECISION

WOODCOCK, District Judge.

The Plaintiff, Monica Currier, is afflicted with macular degeneration and seeks payment under Medicare for a video monitor (VM) to aid her sight. The Secretary of Health and Human Services (the Secretary) contends the VM is not covered under the statute, because it is subject to the eyeglass exclusion. This Court concludes a VM is not excluded from Medicare coverage by the "eyeglasses" provision of 42 U.S.C. § 1395y(a)(7); however, because the Secretary has not ruled finally on whether the VM is otherwise reimbursable, this Court remands the matter to the Secretary for further proceedings.

I. STATEMENT OF FACTS

Macular degeneration is a degenerative condition of the area of the retina called the macular, which controls central vision. Administrative Record (A.R.) at 138-40. This pernicious condition can cause blurring or blank spots except in peripheral vision. Id. There is no known cure. Id. at 40, 119, 126. Unfortunately, Ms. Currier not only has late stage "dry" macular degeneration, she also has undergone a failed corneal transplant in her right eye, further compromising her sight. Id. at 22, 40. In 1997, when she purchased the VM, her eyesight was limited to hand motions in her right eye and was 20/200 in her left eye.¹ Id. at 40.

Before purchasing the VM, Ms. Currier received prescriptions for and instructions in the use of magnifying reading glasses and hand-held magnifiers. Id. at 120. However, these conventional low vision aids provided only a small viewing area at the level of magnification Ms. Currier required and their benefit proved limited. Id. She was compelled to rely on her roommate for most reading tasks, and her independence was compromised. Id. Upon prescription by Dr. Charles M. Zacks, she purchased a VM on December 17, 1997. Id. at 51, 125. A VM combines a camera and video monitor to create an enlarged image of printed text. Id. at 70. It also places white letters over a black background, which eases reading for those sensitive to glare or strong light. Id. The VM significantly ameliorated the egregious effects of Ms. Currier's macular degeneration, allowing her to read the labels on prescriptive medications, recipes, and financial documents and to perform activities of daily living. Id. at 120. As a consequence, she has been able to move into an apartment on her own and has regained her privacy and independence. Id.

Ms. Currier submitted a bill to Medicare for the cost of the VM; however, the Medicare carrier denied her claim both on initial review and reconsideration.² Id. at 4. She requested a hearing before an Administrative Law Judge (ALJ), which was held on January 16, 2001.³ Id. at 4, 127-75. On October 26, 2001, ALJ Dawn Lieb concluded the VM was not covered by Medicare, because it did not meet the definition of prosthetic device and is not customarily used for a medical purpose. Id. at 53-54. Ms. Currier appealed ALJ Lieb's decision to the Medicare Appeals Council,⁴ and on December 8, 2003, the Appeals Council gave her notice of its proposed decision and twenty days within which to respond. Id. at 11-18. The Appeals Council preliminarily concluded the VM was not covered by Medicare, because it fell within the statutory exclusion for eyeglasses. Id. at 13-18. The Appeals Council's proposed decision became final and subject to judicial review on March 30, 2004.⁵ Id. at 1-8.

II. STATUTORY AND REGULATORY BACKGROUND AND THE ADMINISTRATIVE RATIONALES

A. The Medicare Act: An Overview

1. Statutory and Regulatory Inclusions

Enacted in 1965, the Medicare Act, 42 U.S.C. § 1395 et seq. established a national program of health insurance for the aged and disabled. This case concerns Part B of Medicare, which provides coverage for "medical and other health services." Id. § 1395k(a)(1). Under this general definition, the statute establishes certain benefit categories, including "durable medical equipment" (DME) and "prosthetic devices (other than dental) which replace all or part of an internal body organ." Id. §§ 1395x(s)(6), (8).

There is no specific statutory definition of DME, but the law lists examples, such as "iron lungs, oxygen tents, hospital beds, and wheelchairs ... used in the patient's home." Id. § 1395x(n). Medicare regulations define DME as equipment that (1) can withstand repeated use; (2) is primarily and customarily used to serve a medical purpose; (3) generally is not useful to an individual in the absence of an illness or injury; and, (4) is appropriate for use in the home. 42 C.F.R. § 414.202.

The statute also fails more fully to define prosthetic device. However, Medicare regulations state that "prosthetic and orthotic devices" include "[d]evices that replace all or part of an internal body organ" and "[o]ne pair of conventional eyeglasses or contact lenses furnished subsequent to each cataract surgery with insertion of an intraocular lens." Id.

2. Statutory and Regulatory Exclusions

The statute expressly excludes coverage for certain specified items:

(a) Items or services specifically excluded

Notwithstanding any other provision of this subchapter, no payment may be made under ... part B of this subchapter for any expenses incurred for items or services —

. . . . .

(7) where such expenses are for routine physical checkups, eyeglasses (other than eyewear described in section 1395x(s)(8) of this title)⁶ or eye examinations for the purpose of prescribing, fitting, or changing eyeglasses, procedures performed (during the course of any eye examination) to determine the refractive state of the eyes, hearing aids or examinations therefor, or immunizations (except as otherwise allowed under section 1395x(s)(10) of this title and subparagraph (B), (F), (G), (H), or (K) of paragraph (1))....

§ 1395y(a)(7)(emphasis and footnote added). In defining prosthetic and orthotic devices, the regulations also provide an exclusion for "[i]ntraocular lenses." § 414.202.

B. The Administrative Decisions

1. The ALJ Decision: October 26, 2001

ALJ Lieb concluded there is "no doubt that Ms. Currier needs the closed circuit television in order to conduct her everyday life." A.R. at 44. Nevertheless, she commented:

Medicare distinguishes between vision enhancing devices that are prosthetic, and those that are not. Thus, lens that restore the vision provided by the crystalline lens of the eye because of surgical removal or congenital absence are covered. However, low vision aids are not covered items. These are aids used to maximize residual vision rather than replace "all or part of an internal body organ" and therefore do not meet the definition of a prosthetic device.

Id. In reaching this decision, she cited the DMERC Supplier Manual section 18.4 (July 1995). Id. She concluded "this type of device, useful as it may be, does not replace a missing or malformed body part, and it is not customarily used for a medical purpose." Id. She, therefore, determined payment may not be made under Part B.

2. The Medicare Appeals Council Decision: March 30, 2004

The Appeals Council did not reach the question of whether the VM was a prosthetic or durable medical device. Instead, it rested its denial on the eyeglass exclusion under Social Security Act, § 1862(a)(7), as amended, 42 U.S.C. § 1395y(a)(7). It reviewed dictionary definitions of "eyeglass" and noted that they include not only "[g]lasses for the eyes," but also lenses at the eye end of an optical instrument, such as a telescope. A.R. at 5-6. Distinguishing eyeglass from eyewear, the Appeals Council concluded that the VM "relies on a lens in the same way that eyeglasses do, despite the addition of television technology." Id. at 8.

III. STANDARD OF REVIEW

42 U.S.C. § 1395ff(b)(1)(A) provides for judicial review of a final decision by the Secretary denying Medicare benefits in accordance with 42 U.S.C. § 405(g). The Secretary's decision may be overturned only if "it is arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, or contrary to law." Chipman v. Shalala, 90 F.3d 421, 422 (10th Cir.1996) (citation and internal punctuation omitted). "Arbitrary and capricious review requires the court to consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." McDonnell Douglas Corp. v. United States Dep't of Air Force, 215 F.Supp.2d 200, 204 (D.D.C.2002) (citations and internal punctuation omitted), aff'd in part, rev'd in part, 375 F.3d 1182 (D.C.Cir.2004). Substantial evidence is "more than a mere scintilla" and means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Clean Harbors Env't Services, Inc. v. Herman, 146 F.3d 12, 21 (1st Cir.1998).

This Court's proper analytic process for interpreting a statute is set forth in Stowell v. Secretary of Health and Human Services, 3 F.3d 539, 542 (1st Cir.1993). The "starting point" is the text of the statute. Id. Second, if the statutory language does not answer the question, the court may look to legislative history.⁷ Id. Third, if the statute is silent with respect to a specific question, the courts "frequently afford deference to a plausible construction offered by the agency charged with administering it." Id. at 543 (citing Nat'l R.R. Passenger v. Boston & Me. Corp., 503 U.S. 407, 414-15, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992); Chevron, U.S.A., Inc. v. Natural Res. Def. Council,...